First, a quick summary of the law on religious discrimination may help.
Under the Equality Act 2010, an employer must not discriminate against an employee because of religion or belief (or a lack of religion or belief). Treating an employee less favourably (direct discrimination) or harassing or victimising them because of or related to religion or belief is unlawful discrimination and cannot be justified. Indirect discrimination (which is often alleged in religion or belief discrimination cases) is also unlawful unless it can be justified.
Indirect discrimination is where an employer applies a “provision, criterion or practice” (“PCP”) to all employees, but that PCP puts an employee with a particular religion or belief (and others who share that religion or belief) at a particular disadvantage when compared with someone who does not share that religion or belief. Such a PCP will be unlawful unless it is a “proportionate means of achieving a legitimate aim”, namely it is reasonable and can be justified.
Article 9 of the European Convention on Human Rights (which directly applies to public sector employers and must also be taken into account when interpreting UK employment law) provides that everyone has the freedom to hold and to manifest their religion or beliefs.
However, this right is subject to “such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” This is a long-winded way of saying that the manifestation of religion must be reasonable and must be balanced against others’ rights and freedoms.
In the case of Wasteney v East London NHS Trust, Miss Wasteney was a senior manager of Christian faith who overtly manifested her faith towards a more junior worker (of Muslim faith). Miss Wasteney’s behaviour included: praying with the junior worker and, on one occasion, laying hands on her; giving her a book about the conversion of a Muslim woman to Christianity; and inviting her to various services and events at Miss Wasteney's church.
The junior worker complained to their employer that Miss Wasteney had tried to impose her religious views on her, and that she felt “groomed” by Miss Wasteney.
The employer investigated this complaint and gave Miss Wasteney a written warning, as they considered that Miss Wasteney had “blurred professional boundaries and placed improper pressure on a colleague”. The employer took into account the fact that they had previously counselled Miss Wasteney about how to conduct herself in relation to her personal spiritual beliefs when dealing with staff.
Miss Wasteney claimed direct and indirect religious discrimination and harassment. She also claimed that she was exercising her Article 9 right to manifest her religious belief.
The employment tribunal rejected her claims and the EAT agreed. The EAT found that the disciplinary action against Miss Wasteney was not because she had manifested her religion or belief. It was because of the inappropriate way she did so. The disciplinary action was warranted for the following reasons:
- Miss Wasteney’s conduct towards the junior worker was unwanted and unwelcome, rather than consensual;
- Miss Wasteney was a senior manager in a position of authority, and her conduct was towards a subordinate;
- her behaviour went far beyond “religious discussion”; and
- she had been previously counselled and instructed not to act in that way.
What does this mean for you or your business?
It is important to remember that cases such as the one above are always fact-specific. Whilst it was not discriminatory for Miss Wasteney’s employer to discipline her in those circumstances, this does not mean that disciplining an employee for manifesting their religion will be lawful in different circumstances.
You must always keep in mind that an employee is entitled to hold and manifest a religion or belief, provided that this does not unreasonably impinge on the religion, belief and human rights of others.
If you are faced with a situation like this, you should conduct a thorough investigation before reaching any decision regarding whether disciplinary action may be appropriate and, if so, what form that action should take.
In addition, you must not treat an employee less favourably or harass or victimise them because of (or related to) their religion or belief. The reason for any disciplinary action must be the employee’s inappropriate behaviour (in manifesting that religion or belief).
In considering whether the behaviour is inappropriate, it may be helpful to consider:
- Is the employee’s manifestation of their religion “reasonable”? What is the nature, extent and frequency of the behaviour? For example, occasional discussions about or references to an employee’s faith are different from repeated or frequent discussions. Offering to pray for a colleague (and accepting their answer) is also quite different to praying for or laying hands on someone without their specific consent.
- What are the levels of seniority of the employees involved? Specifically, does the employee manifesting their beliefs hold a position of authority (compared to the other employee(s) involved), and could the employee be abusing their power?
- Is the behaviour consensual? If not, has it previously been consensual? This will not always be clear. An employee manifesting their faith may consider that a colleague is consenting if the colleague has not indicated that the conduct is unwanted and/or if the colleague has previously been open to such conduct. A careful investigation would, therefore, be required to establish this. If the employee manifesting their faith did not know (and could not reasonably have known) that this was unwanted, this will affect what, if any, disciplinary sanction should be imposed.
- Is the objection to the employee’s manifestation of their religion reasonable, or is the objecting colleague particularly sensitive or hostile to this conduct and, if so, why?
- Has the employee manifesting their faith been previously warned or counselled about this, or is this the first time?
What do you need to be doing now?
If you have an Equal Opportunities Policy, ensure that this is up to date and that it covers religion and belief. This should also tie in with other policies and procedures, such as Anti-Harassment and Bullying, Grievance and Disciplinary.
Ensure that all staff are trained in equal opportunities. In relation to religion and belief, make clear that:
- employees are entitled to have and to manifest their own religion or belief;
- they will be treated equally regardless of religion or belief; and
- employees must act reasonably and sensitively towards others (including colleagues, customers, suppliers and other work-related contacts) in manifesting their religion or belief (or lack of the same).
Your aim must not be to create a religion and belief-free workplace. Rather, it should be to create a tolerant environment where religion and belief can be reasonably manifested and where the different religions, beliefs and human rights of employees (and others) are balanced.
If you are facing a difficult situation in this area, please seek legal advice.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.